The horizon of ethical
thought in our time is framed by human rights, and therefore the
yardstick for measuring a legal text is its consistency with the
declarations, conventions and agreements signed by the country on
the recognition, proclamation and guarantee of the inherent rights
of human beings, all of which are protected by Article 50 of the
Constitution.

Venezuelabelongs to the family of nations that recognize in the
dignity of human beings an essential value that should serve as the
foundation for the creation, interpretation and application of
positive law. It is an ethical value which, like the North Star,
should guide the work of legislators, bureaucrats and
judges.

The Venezuelan Republic
is signatory to the following basic international instruments: the
Universal Declaration of Human Rights (1948), the American
Declaration of the Rights and Duties of Man (1948), the
International Covenant on Civil and Political Rights (Official
Gazette of Venezuela of 28 January 1978) and the American
Convention on Human Rights (Pact of San Jose, Costa Rica) (Official
Gazette of Venezuela of 14 June 1977). On signing these
instruments, the country assumes obligations not just toward with
other states in the international community but, chiefly, toward
the individuals who live under its jurisdiction. The common
denominator of these obligations is the recognition of and respect
for the rights that are protected by declarations and conventions,
i.e. proclaiming them and guaranteeing them. These instrument, to
which Title III on Duties, Rights and Guarantees of the Venezuelan
Constitution should be added, as well as the direct and indirect
means of protecting human rights (appeals and ordinary proceedings)
constitute the block of human rights, an internationally-recognized
model of legitimacy that should govern the evaluation of our legal
texts.

What do the assurance
that have been given in the name of the Republic oblige us to do?
These international obligations imply respect for the minimum
guarantees that are entailed in the concept of due legal process:
to be told the nature of the charges; to be given time to prepare a
defence; to be tried without undue delay; the right to defend
oneself directly or through a defence counsel of one’s
choice, remunerated or not; the right not to incriminate oneself;
to question prosecution witnesses and to call witnesses for the
defence; to be heard by an independent and impartial magistrate,
established in advance by law, in a public, oral trial; and the
right to appeal a guilty verdict.

Can the code of criminal
procedure that has governed us, pass the human rights test? The
answer is a categorical and ringing “no”. Our code of
criminal procedure, examined from the standpoints of legality and
effectiveness violates the basic procedural principles that we are
called upon to guarantee.

Venezuela’s criminal procedure, mixed in its origin, was
gradually perverted (from investigation by the courts to
investigation by the police and the possibility of admitting
information acquired in the preliminary proceedings as evidence) to
become an almost purely inquisitorial process. The preliminary
proceeding, which was a preparatory stage for the full trial,
became the principal stage, where the police prepare the case,
arrest the ‘alleged’ author of the crime and, to cap it
all, in violation of express legal requirements, condemn the person
publicly through the media. The ordinary trial, deprived of all
substantial content, has been turned into a meaningless ritual. As
things stand today, criminal trials end, materially, with the
arrest warrant.

If there is one urgent
task that can be undertaken to restore democratic meaning to the
criminal justice system, it is to remove these powers of case
preparation from the hands of the police who, owing to a
degeneration of the criminal proceeding, have become the main
player. The magistrates simply carry out their designs, which has
led Raúl Eugenio Zaffaroni to write that the situation
“downgrades the country’s judicial branch to the status
of a mere accessory of the executive branch” represented by
the police. Judges in Venezuela have clearly become assistants to
the police.

In addition, we practise
“paper justice”, where the human being to be judged is
buried under a mountain of bureaucratic files.

The judge’s eye
sees no further than the papers on the file; he does not know the
face of the accused; he has never seen the gestures or heard the
voice of a witness or an expert. He only reads the reports prepared
by police officers, who moderate the statements of the accused and
witnesses through their own training and vocabulary. The sentence
handed down by the same judge who is in charge of overseeing the
investigation and who, in that capacity, issued the arrest warrant,
is and cannot be anything more than a gloss on police proceedings,
with brief references to the defence and the charges laid by the
public prosecutor, with defence and prosecution being no more than
bit players in the inquisitorial scenario, where the police and the
magistrates share the limelight. Appeals are a second reading of
the file, even further away from the human being being tried - a
reading often done by the same judge who confirmed the arrest
warrant. The higher court, which returns the judgement bristling
with formalisms, never examines the substance of the case so that
it can impart justice; it merely follows procedure. This whole
criminal process leads to the imposition of a sentence the serving
of which turns into a nightmare, where the abysmal distance
separating the intention behind the penitentiary system from
reality is very clear.

In a democratic society,
the criminal process should not be a simple tool for repression. It
should be a series of rules which, preserving procedural
guarantees, permits the magistrate to learn the truth of the events
and apply the rules called for by law and by justice. As Horst
Schönbohm and Norbert Lösing state, the just procedure is
to find the path between the need for an investigation to carry out
material criminal law and the protection of the rights of the
accused. This is the mission of criminal procedural law.

Criminal procedure is not
a purely technical device (Cappelletti), a journey to arrive at a
decision. It is also a “barometer of the authoritarian and
corporate elements in the Constitution” (Goldschmidt);
“a seismograph of the Constitution” (Roxin); the
“touchstone of civility” (Carnelutti); “an
indicator of the legal and political culture of a people”
(Hassemer); “applied constitutional law” (H. Henkel).
Therefore, and since a State-sanctioned sentence is the maximum
interference by the State in the individual sphere, human beings
over history have erected a barrier against arbitrariness in the
imposition of a penalty, a barrier that is none other than the law
and due process. The government cannot punish without the ruling of
the natural judge (Maier). Rules are devised to mediate in the
historical antithesis between power and freedom (Bobbio), between
the State’s right to punish, to protect the community from
crime, and the right to freedom of the individual
(Leone).

Consideration of this
situation makes it necessary to update Venezuela’s trial
legislation, replacing a system of judgement that is called
‘mixed’, but which is fundamentally inquisitorial (a
system that is typical of absolute States), with one in which the
parties are equal and the judge acts as an impartial third
party.

The change proposed in
criminal procedure reflects the intent of the houses of the
legislature to promote a sweeping transformation of the Venezuelan
justice system, which has been expressed in the studies and
discussions of the Legislative Committee, that led it to approve
the draft code of criminal procedure.

The draft code of
criminal procedure approved by the Legislative Committee is not a
mere transcription of any of the codes, statutes or criminal
procedural laws of other countries that currently follow the
adversarial and oral system. Nonetheless, it forms part of the
cultural context of the West.

The sources of the reform
stem from the tradition of the family of Roman-Canon Law, to which
we have belonged since the first independent legal expressions of
our Republic. The philosophy of the Enlightenment, the ideas of
Montesquieu (1748), Rousseau (1762), Beccaria (1764), the
Declaration of the Good People of Virginia (Virginia Declaration,
1776), the Declaration of the Rights of Man and of the Citizen
(1789), constituted the ideological endowment of the Republic and
disembarked with Francisco de Miranda on the shores of Venezuela,
where they spread and flourished throughout the
Americas.

Accordingly, the
Declaration on the “Rights of the People”, passed by
Venezuela’s Congress on 1 July 1811, recognizes the rights of
man in society to include the presumption of innocence (Art. 15
“All citizens shall be presumed innocent until found guilty.
If it is indispensable to keep a citizen in custody, the law shall
prohibit any unnecessary harshness”); the right to be heard,
the principle of the legality and non-retroactivity of the law
(Art. 16 “No one shall be judged or punished until they have
been legally heard, under a law that was promulgated prior to the
crime. A law that punishes crimes committed before it existed is
tyrannical. Making a law retroactive is a crime”); the
principle of need, proportionality and utility of punishments (Art.
17. “The law shall only decree very necessary penalties and
they shall be proportionate to the crime and useful for
society”).

In turn, Chapter VIII,
Title Two, of the First Constitution of the Republic (1811), which
was the first in Latin America, recognized as “Rights of Man
in Society” the presumption of innocence (Art. 159); the
right to be heard, to be told the charges against him, the right to
meet his accusers and prosecution witnesses face-to-face, the right
to present witnesses and evidence on his behalf, the right to have
defence counsel of his choice, the right not to be compelled to
incriminate himself or his family (Art. 160); the inherent right to
a trial by jury (“Congress, as quickly as possible, shall
establish in a detailed law, the right to trial by jury for the
criminal and civil cases in which it is commonly used in other
countries, with all the forms that are typical of this procedure
…”) (Art. 161); the non-retroactivity of the law (Art.
170); the proportionality of surety and penalties, the prohibition
of cruel, demeaning or unusual punishment (Art. 171); and the
prohibition of torture (Art. 173).

This line of thought,
which is our birth certificate as a nation, also bathed the shores
of Europe. The trial laws of the French Revolution (1791),
moderated in the French Code of Criminal Procedure (1808) that made
a legal and political synthesis of monarchical legislation (the
Criminal Statute of Louis XIV - 1670), the inquisitorial process
(preliminary proceedings), revolutionary legislation and the
adversarial process (full trial). This mix of procedures formed the
basic nucleus of contemporary legislation: Austria (1873), Germany
(1877), Spain (1882), Italy (1913).

A synthesis of this
entire procedural evolution can be found in the Model Code of
Criminal Procedure for Iberoamerica (1988), a work by prominent
Latin American and Spanish jurists, including Julio Maier, Alberto
Binder and Ada Pellegrini, whose contributions were fundamental for
the birth of the text. Jurists Alfredo Vélez Mariconde and
Jorge Clariá were asked to produce the ‘bases’
for the model code by the Fourth Meeting of the Iberoamerican
Institute of Procedural Law, held in Valencia, Venezuela, in 1967.
They presented the Bases for a Model Code at the Sixth Meeting also
held in the city of Valencia, in 1978. This masterwork, in turn,
owes a debt to the Code of Criminal Procedure of the Province of
Cordoba, Argentina, (1939), apart from its debt to the legal
tradition already referred to.

This evolution has been
summarized in the so-called Mallorca Rules (1992), which are the
minimal rules for criminal procedure announced by the United
Nations, one of whose drafters was Professor Eberhard
Strüensee, who also helped to define the guidelines for the
draft code presented here.

The historical product of
this evolution is the oral and public trial (as practised by the
Athenians, Rome during the Republic and the ancient Germans), with
its principles (guarantees) of an oral process (oralidad),
direct communication between judge and parties
(inmediación), closeness in time
(concentración) and publicness (publicidad),
based on the pillars of equality, refutation and
defence.

In short, down through
history, the Roman-Cannon Law family produces a scenario in which
the ‘drama procese’ (Calamandrei) develops, through the
need for proof (from the adversarial hypothesis), the possibility
of refutation (defence) and a reasoned judgement; a drama that
consists of an historical reconstruction of a matter of life
(Beling), under the parameters of a truth obtained through judicial
avenues.

The process should be a
guarantee of truth and justice (Ferrajoli), because its ethos is
truth in the establishment of the events and justice in the
application of law (Schmidt).

The State has the duty of
guaranteeing the right to justice of all the inhabitants of the
Republic. To do so, it must erect a structure of bodies that serve
justice as well as a procedure, a process, that permits, with
respect for the rights of individuals, a judicial decision to be
reached that is just and based on the truth.

The criminal process is
the method through which jurisdictional guardianship materializes
in the action of criminal law; penalties are determined by the
State and can only be applied by an independent and impartial
criminal court, through a process without undue delays.

The effectiveness of
criminal law depends largely, not on the harshness of the penalty
established, but on citizen perception of the certainty that it
will be applied and the speed with which it is executed, as Cesare
Beccaria, ideological founder of criminal science said when he
noted: “The certainty of a punishment, even if it is a
moderate punishment, will always make a greater impression than the
fear of a harsher one accompanied by the hope of impunity, since
the certainty that evil will befall always makes a greater
impression on the human soul …” And the great Italian
thinker goes on to add that the method of judging must be
“regular and expeditious”.

Becarria’s precept
can only be achieved through an adversarial, oral and public trial,
which is the guiding light of the reform of Venezuela’s
criminal procedure.

The objective is to offer
the citizenry, in each case, beginning with the criminal area, a
concrete and certain response, based on rapid justice handed down
with equity as well as a major contribution to combating crime and
strengthening the desired legal security. In the effort to achieve
this, account has always been taken of the special organization
that Venezuelan legislators established for the judicial branch,
with regard to independence and the distribution of
responsibilities among the judicial organs envisaged in the
country’s Constitution, and the national judicial
tradition.

As the doctrine observes,
the problem to be solved in organizing criminal procedure focuses
on the need to reconcile the interest of the accused, which is to
be protected through adequate guarantees for the accused’s
defence, avoiding wrongful convictions, and the interest of society
in obtaining certain and rapid repression of crime. The
predominance of one or the other of these interests determines the
appearance of two different systems - the adversarial and the
inquisitorial.

In the adversarial
system, the judge is excused from taking the initiative in criminal
prosecution and, therefore, unlike the inquisitorial investigating
judge, does not propose the subject matter of the trial himself. On
the contrary, the subject matter is presented to him in the form of
charges that are postulated and argued by a person other than the
judge. The accuser and the accused meet before the judge with equal
rights and obligations and the accused is generally allowed to
remain free until the sentence is handed down.

However, as procedural
doctrine has also clarified, the adversarial system does not really
exist in an entirely pure form. The procedural rules can be
predominantly inquisitorial, as in the existing Code of Criminal
Procedure, or predominantly adversarial, as in the proposed new
code.

Why is the proposed law
called a “basic” law (ley
orgánica)?

Article 163 of the
Venezuelan Constitution establishes that: “Leyes
orgánicas are those thus called in this Constitution and
those invested with that nature by an absolute majority of the
members of each House, when the proposed legislation is
tabled.”

Doctrine states that when
they established the term “ley orgánica”,
what the framers of the Constitution intended was to “prevent
special laws from revoking provisions that refer to the
organization of certain branches of government or the formalities
that certain laws must comply with.”

Another doctrinal sector
maintains that, based on Article 163 of the Constitution, four
interpretations have arisen, which elucidate the scope and purpose
of the article. The first interpretation states that “the
Constitution establishes a supercategory of formal laws by
enshrining the figure of leyes orgánicas (…)
Special laws are not entitled to preference in application over
other laws, and leyes orgánicas have the power to
override them”; a second interpretation is that “the
Constitution has limited itself to establishing a rule for
legislative policy, ordering the legislator when he has to
legislate on matters governed by leyes orgánicas, to
subject those matters to the general provisions established
therein, and to their spirit and intent”; the third
interpretation, which refers to rank rather than the content of the
law and is closely linked to the first interpretation, maintains
that “leyes orgánicas do constitute a
supercategory of laws and, accordingly, special laws must be
subject to them, but only in the matters dealt with in the ley
orgánica”; the fourth and last interpretation
“identifies leyes orgánicas with fundamental
laws, and considers that they are applied preferentially over
special laws in all matters in them that constitute the development
of express constitutional rules, such as rules relating to the
guarantees established in the constitution and the rules of
organization for the essential structures of the
State”.

Our Constitution, unlike
other constitutional systems, establishes a formal criterion in
Article 163 for determining the nature, hierarchy or rank of
legislation, based on the need for a law to be defined as
‘orgánica’ by a majority of the members
of each house when the bill is tabled in them. However, it is
possible to determine indirectly from other constitutional
provisions that leyes orgánicas have the purpose of
regulating certain public institutions established in the
Constitution, for example in Article 204 which, when referring to
the organization of the Judicial Branch, establishes that
“Judicial Power is exercised by the Supreme Court and by the
other tribunals determined in the ley
orgánica”.

Given that the
implementation of the proposed system of criminal procedure, as
envisaged in the final book of the draft code, supposes a necessary
modification in the organization of criminal justice (and in the
Ministerio Público, which is also governed by a
ley orgánica) and this matter, in accordance with
Article 204 of the Constitution, must be regulated in a ley
orgánica, it must necessarily be concluded that only a
ley orgánica can establish modifications to that
organization.

I. GUIDING
PRINCIPLES

There are various
principles that determine the nature of the proposed process. It is
highly important to reflect on them, since, as Victoria Berzosa
notes, the expression “principles of the process”
refers to the basic ideas behind given sets of rules that are
deduced from the law itself, although they are not expressly
formulated in it. These ideas or criteria constitute the substrate
of the different types of processes, permeate their structure and
are apparent in their construction or legal regulation.

As the author cited says:
“The analysis of procedural principles is highly interesting,
even when performed from an historical perspective, since it helps
to explain, to some degree, the whys and wherefores of the
possibilities, duties and rights of persons subject to trial; in
other words, the reason or basis of the different historical
structures in the process. But aside from this concrete aspect, the
examination of procedural principles has an undoubted theoretical
and practical value that is apparent in three aspects. First, it is
an auxiliary element in interpretation. It is also, in the event
there are gaps in the law, a datum or factor that can be used as an
analogy. Last, it provides a theoretical framework for discussions
of lege ferenda. It is of undeniable pedagogical interest
for the study of the principles behind the process, since it
facilitates a summary, but comprehensive view of the procedural
system.”

1. Duality of
parties

For a true trial to take
place, two parties in contrary positions must exist - the accuser
and the accused. This principle is introduced in the system
proposed in the draft code of criminal procedure, with the judge
acting as an impartial third party in a forum established to settle
the conflict between the accuser and the accused. However, the
judge is empowered to include information in the trial obtained
from his questioning of experts (Art. 355), witnesses (Art. 357)
and may order the admission of new evidence (Art. 360), without his
impartiality being compromised.

The system developed in
the draft code cannot be called a pure ‘trial of
parties’, which is typical of adversarial systems, such as
the Anglo-Saxon system, where the judge is an arbiter. This model,
“originally taken from England, was developed by extending
[the role] of the prosecutor as a professional accusatory
authority. On the one hand, the accuser and, on the other, the
accused and his defence counsel, carry out the procedure as parties
confronting each other, but with equal rights, until the court,
which is required to decide on the charges, which until this point
continues to be formed by the jury, participates as a spectator in
the debate and finally hands down a verdict of guilt or innocence
in function of what it has seen. In this so-called adversary
system, the evidence depends on the parties, who undertake to
present witnesses and take their statements; supervision is the
responsibility of the professional judge (the bench), but he does
not participate personally in the decision regarding guilt. In the
event that a guilty verdict is reached by the jury, the judge is
required to determine the sentence”
(Schünemann).

The design of the process
is governed by the principle or maxim of investigation, which
requires the judge to seek the truth and therefore he does not have
to accept the arguments of the prosecution and defence if what they
say is not sufficient to convince him. In the draft code, the judge
is not a passive subject, a mere arbiter, but an active player,
although without exorbitant powers that would call his impartiality
into question. He follows the rules of a fair trial, respecting
them and demanding respect for them and for the truth of the
events.

2. The hearing (audiatur et
altera pars)

According to this
fundamental principle, no one can be found guilty without being
heard. The principle is related directly and indirectly to the
principle of defence, disregard of which invalidates a trial. This
does not mean that only the accused has the right to be heard. The
formulation of this principle, referring only to the accused, obeys
the consideration that the accuser will also have the opportunity
to be heard, when he reads the charge or when he petitions for a
decision by the court. The draft code provides for numerous
institutions to ensure defence through the effective fulfilment of
the principle audiatur et altera pars. As we will see,
allowing the taking of unrepeatable evidence in the pre-trial
period (Art. 316), the decision on whether to hold a trial (Art.
334) and debate in an oral trial (Art. 347 and ff) are
manifestations of full acceptance of this principle.

3. Equality

This is an exigency of
the two principles mentioned. The principle of equality assumes
that the parties have the same rights, opportunities and
obligations for defending their interests. The duality of parties
and the right to a hearing would make no sense if the parties did
not have identical procedural possibilities for maintaining and
arguing the merits of what each one deems appropriate.

The draft code has
provided for formal defence to begin at the time when a person is
charged, i.e. when a person is accused of being the author of or
participant in a punishable offence through a procedural action by
the authorities named in the code as having responsibility for
criminal prosecution.

II. PRINCIPLES THAT DETERMINE
THE SPECIFIC NATURE OF SOME OF THE INSTITUTIONS IN THE
PROCESS

1. Officiality

The principle of
officiality predominates and is inherent in trials in which the
collective interest is at play.

Application of the
principle of officiality has the advantage, from the standpoint of
the public interest, of controlling criminal prosecution through
State organs, which are naturally different, one being responsible
for prosecution and the other for trials (Roxin). With this
division, the State places a self-limitation on its power to impose
penalties for the commission of offences.

2. Expediency and
legality

The principle of
expediency contrasts with the principle of legality. According to
the latter, the Ministerio Público is required to
take action with respect to all events that have the nature of a
crime, provided that the investigation obtains sufficient evidence
to maintain the accusation.

The principle of
expediency is an exception to the principle of legality and an apt
mechanism for channelling the spontaneous selectivity of all penal
systems. It implies the possibility of not prosecuting certain
criminal behaviour or of suspending a proceeding under way, with or
without conditions, in response to different factors contained in a
concrete criminal policy in effect at a given time and place. The
principle of expediency has recently been introduced into different
European legislation (Portugal, Italy, Spain). The German system
has regulated this principle in greatest detail.

In Anglo-Saxon law, the
principle of expediency is the rule and translates into the figures
of the guilty plea, confession to avoid a trial, and plea
bargaining, which is a negotiation between the prosecutor and the
accused to agree on the full extent of the charges, thereby
reducing the seriousness of the crime or fine, as appropriate
(Asencio Mellado).

The introduction of this
arrangement into the Venezuelan system chiefly responds to the need
to simplify and streamline the administration of criminal justice,
clearing the courts of the backlog of petty crime and misdemeanours
and, as a counterpart, avoiding the criminalizing effects of short
sentences, encouraging prompt reparation for the victim and
providing the delinquent with another opportunity to become a
member of society.

The draft code allows the
prosecutor, in application in certain circumstances of the
principle of expediency, to dispense completely or partly with
laying criminal charges or limiting prosecution to some of the
people involved in the event, always with the approval of the
overseeing magistrate.

Other alternatives to
prosecution include agreements on reparation and suspended
sentences. The first can be used when the punishable event has to
do with disposable property or offences that have not caused death
or affected the physical integrity of an individual permanently and
seriously. The second can be used when a suspended sentence is
appropriate and the accused has admitted the charges against him.
This second institution comes from Anglo-Saxon procedural systems
that allow for probation.

In general, these
measures, which confer broad authority on the Ministerio
Público, are an innovation in our criminal trial system,
are based on criteria of economy in proceedings and constitute an
alternative to long and costly trials.

Starting at the moment
when the overseeing magistrate orders that a trial be held, the
case is remitted to the competent court for a hearing. The idea is
to ensure the impartiality of the trial judge, since he is not
involved in weighing the evidence that led the prosecution to
petition for a trial, with a view to the role that justice should
play as a guarantor of the freedom and rights of every
person.

3. Weighing the evidence:
Judicial discretion

As is known, the old Code
of Criminal Procedure is based on the system of legal evidence. The
new code provides that evidence will be weighed by the court
according to its discretion, following the rules of logic,
scientific knowledge and the lessons learned from experience and
rejecting arbitrary evaluation of the evidence, since the court is
called upon to make a free, but reasoned, judgement, logically
weighing each of the items of evidence. This principle is closely
linked to the principle of direct communication between judge and
parties, since only the judge who has heard the evidence in a
public hearing will be in a position to freely make up his mind and
weigh the evidence properly.

The draft code starts
from the consideration that a court sentence can be based on any
item of evidence that is not prohibited by law. Evidence obtained
through mechanisms that could alter the psychic state of a person,
influencing his freedom of self-determination, his capacity to
recall or assess events, or through means that fail to provide due
respect for human dignity is prohibited.

A judgement cannot be
based on evidence that is not scientifically recognized as
reliable.

4. Prohibition of
reformatio in peius

Another feature of the
adversarial system is the impossibility of a higher court
aggravating the situation of the appellant. This feature is
included in the draft code as one of the general provisions in the
book that deals with appeals (Art. 435).

III. PRINCIPLES RELATING TO
PROCEDURES LINKED TO THE ADVERSARIAL NATURE OF THE TRIAL

The principles linked to
the adversarial nature of the trial - oral proceedings, direct
communication between judge and parties, closeness in time and
publicness - as Professor Fairén Guillén states, are
the components of a policy that calls for the prompt effectiveness
of the process, access by persons who are economically
disadvantaged, and the principles of “adequacy” and
“practicability” that Klein summarized as “the
social utility of the process”. The draft code is based on
them.

1. Oral
proceedings

The principle of oral
proceedings supposes that the judicial decision is based on
evidence provided orally. More than a principle, oral proceedings
are one way of conducting a trial, that goes hand-in-hand with
other principles: direct communication between judge and parties,
closeness in time and publicness.

With regard to the
requirement for oral proceedings, the draft code allows for the
preliminary hearing and the trial to be oral and to include
questioning of witnesses and experts. The magistrate hands down his
finding based on oral acts and not on written acts describing the
results of the investigation, which means that the procedure for
evidence during the debate depends on the principle of oral
proceedings.

2. Direct communication
between judge and parties

This principle postulates
that the judge hearing the case has been present during the
presentation of evidence and bases his decision on it. This means
that he has been in direct contact with the parties, experts,
witnesses and with the objects of the case. Accordingly, the judge
who hears the evidence and the judge who hands down the sentence
must be one and the same person.

The direct impressions
obtained by the parties who participate in the trial facilitate
arriving at the truth and the possibility of defence.

3. Closeness in
time

Under the principle of
closeness in time, which is the main external characteristic in
oral trials, the evidence should be presented at a single sitting
or in successive sittings, so that when the time comes to hand down
a decision, the judges will be able to remember what has been
presented. “The law is interested in obtaining a fresh,
direct impression, rather than one from dusty papers, and to have
the possibility of participating at any time and receiving the
unfettered cooperation of the people participating in the process.
All this can produce the desired result if the time between the
different parts of the debate is not excessively long”
(Baumann).

Holding consecutive
sittings is so important that interruptions of more than 10 days
are sanctioned, and the hearings are required to by law resume
(Arts. 337 and 339).

4. Publicness

Criminal matters are too
important to be dealt with secretly and therefore the trial, with
the exceptions provided by law, must be held in public. This is a
guarantee of the legality and justice of the verdict and brings the
common citizen closer to the justice system, strengthening his
confidence in it, which, in turn, represents a democratic control
over judicial action. By protecting the parties from justice that
escapes public control, one of the aspects of due process is
guaranteed.

The only exceptions to
public trials are expressly regulated in the draft code (Art.
336).

IV. CITIZEN
PARTICIPATION

This institution, which
will deepen our political democracy, will contribute to the
formation of collective responsibility or civic awareness and is a
necessity given the absence of contact between the body of criminal
judges and the source of their power - the people - in other words,
with the organ from which their authority issues and over which
they exercise it. This distancing from the source of their
authority under the current system can be explained by the fact
that magistrates are not elected through direct representation,
which means that the judicial branch is the least democratic of the
public powers. The Constitution (Art. 217) states that it is the
responsibility of the Judiciary Council to “ensure the
independence, effectiveness, discipline and decorum of the
Courts” and, in developing this postulate, the Law governing
the Judiciary Council gives the council primary responsibility for
appointing judges.

It is often affirmed that
criminal justice today is ‘divorced’ from social
reality, and many advocate ‘deprofessionalizing’ it. In
the words of Hulsman and Bernat, it is “almost impossible for
a legitimate sentence to come out of the criminal system, if we
consider how it functions”, since it operates in accordance
with “its own logic that has nothing to do with the lives or
the problems of people”. This is particularly clear in the
use of writing, where the activity of the judge is limited to
reading the pages of a file and “when it comes to the real
events he only - sometimes - knows what the accused looks
like” (Cavallero and Hendler). As these authors aver - and
this has been our guide in including citizen participation -
today’s challenge consists of finding mechanisms that reduce
the dual isolation of criminal justice, bringing it close to the
source of sovereignty and trying to ensure that the decisions of
the courts respect the real needs for social justice, which will
lend the judicial branch the democratic legitimacy it lacks
today.

It should be recalled
that, as Montesquieu said in this theory on the division of powers:
“The judiciary power ought not to be given to a standing
senate; it should be exercised by persons taken from the body of
the people at certain times of the year, and consistently with a
form and manner prescribed by law, in order to erect a tribunal
that should last only so long as necessity requires. … By
this method the judicial power, so terrible to mankind, not being
annexed to any particular state or profession, becomes, as it were,
invisible.”

In an attempt to end this
isolation between justice and the people, the draft code includes
citizen participation as a right and duty. The right of all
citizens to be judged by their peers - a clause that was already
present in John Lackland’s Magna Carta of 1215, an instrument
which is considered to be the historical and legal foundation of
the jury - and the duty of participating in the administration of
justice. This public participation is established in the draft code
through two formulas: a tribunal in which citizens decide jointly
with professional judges (jurado escabinado, which has been
called a “mixed tribunal” in the draft) and a tribunal
composed of citizens who are not legal professionals, who act under
the eye of a professional judge (the Anglo-Saxon jury).

The draft code
establishes that the mixed tribunal will have functions similar to
those of a professional judge and will deliberate together with him
on the court’s decisions. This means that they will decide
together with the professional judge on guilt and punishment. This
model, which as been considered a “remodelling and
enrichment” of the classical jury, is applied in France,
Italy, Germany and Switzerland, among other countries.

The Anglo-Saxon jury has
been defined by Escriche as the “meeting of a certain number
of citizens who are not public magistrates and are chosen by lot
and called before the court or judge to declare on their conscience
whether an event has been proven or not, to enable the judge to
hand down a verdict of innocence or guilt and, in the latter case,
to determine the penalty under the law.”

For his part,
López-Muñoz and Larraz has noted that: “A jury
trial consists of a meeting, in a public, oral trial, presided over
by a professional judge, of a number of non-jurist citizens, with
the right to vote, literate, contributing their different cultures,
mindsets and origins; contributing the experience of their
different professions, work and trades; hearing for the first time,
dispassionately, with close attention, the events and evidence
taken or reproduced in their presence, in relation to the behaviour
of the accused; listening with the same interest and impartiality
to the arguments of the prosecution and defence; withdrawing after
hearing the non-binding summation made by the professional judge,
to deliberate alone, deeply, trying to forge unanimity out of the
fire of the contradiction of their different ideas; finally coming
up with a verdict of innocence or guilt. Afterwards, the
professional judge hands down the sentence, based on the verdict,
absolving the accused or, if he is found guilty, applying the
penalties and individualizing the punishment.

In the United States, the
constitutions of virtually every state of the union establish the
right to trial by jury, confirming trials with public participation
based on the classical model of the English jury.

This institution is not
foreign to the Venezuelan or the Latin American legal system. The
Venezuelan Declaration of the Rights of the People of July 1811
provides for juries in criminal and civil cases. This provision is
repeated in the 1819, 1821, 1830 and 1858 Constitutions, after
which the tradition ends. Almost every Venezuelan code of criminal
procedure up to the early 20th century refers to trial by jury in
one form or another.

Revisiting this
tradition, the draft code provides for a tribunal presided over by
a professional judge and composed of a nine-member jury. The jury,
not schooled in law, will only give its opinion of the truth of the
events, with the professional judge applying the punishment.
Therefore, this mode of public participation is limited, as in the
classical tradition, to pronouncing a verdict on whether or not
events took place, but without any power to apply the
law.

STRUCTURE OF THE DRAFT
CODE

The draft code of
criminal procedure consists of a preliminary title, five books and
a final book. The preliminary title covers the general principles
that are called on to regulate the exercise of criminal justice.
The subject matter covered by the code’s five books is
divided as follows: book one deals in general with criminal
procedure and all matters relating to the regime of criminal action
and civil action; book two refers to ordinary procedure; book three
refers to special procedure; book four deals with appeals; and book
five with execution of sentences. The final book deals with the
transitory procedural regime, the organization of the courts, the
prosecuting authority (Ministerio Público) and public
defence, for action in criminal proceedings.

1. Preliminary
title

The principles that will
govern criminal procedure are placed in the preliminary title in
order to provide an overview of the proposed procedural system. The
draft code is simply the development of those principles, which
will be implemented to a greater or lesser degree in each of the
stages in the process. Therefore, as already mentioned, they will
be an auxiliary element in the interpretation, aside from their
clear value from the educational standpoint in bringing about the
change in culture in the administration of justice (Binder) that is
implied in this reform.

The first of the
provisions in the preliminary title establishes the right to a
preliminary hearing and to due process. This rule is simply a
ratification of the principles established in the Constitution and
in the international agreements ratified by Venezuela. It is
established in Art. 1 of the draft, since it encompasses all the
other principles on which the criminal procedure rests and, as
Molina Anubla affirms, due legal process in the trial and
sentencing of a person demands that the procedural rite, which was
established before the conduct was engaged in, be followed with
strict legality.

The principle of a
preliminary hearing is linked to the legality of the process,
whereby every one has the right to be judged under a law that not
only establishes the crime and the punishment, but also establishes
the procedure to be followed.

As aspects of due
process, the code reiterates the need for an impartial judge, i.e.
who is deaf to any other interest except for the administration of
justice, and for the trial to take place without undue delay. The
draft code ensures the impartiality of the judge, by separating the
functions of investigation and decision and by prohibiting undue
delay, through rigorous regulation of the duration of the
investigation to be performed by the Ministerio
Público (Art. 321) and the reasons for which a trial can
be adjourned (Art. 337).

The second article
regulates the exercise of jurisdiction.

Jurisdiction is defined
as “the power or authority that a person has to govern and
enforce the law; and particularly, the power granted to judges to
administer justice, in other words to hear civil or criminal
matters or both and decide them or rule on them in accordance with
the law …” (Escriche).

If the people have
delegated the power to administer justice to judges and tribunals,
the latter have jurisdiction not just to proclaim justice in their
decisions, but also to enforce their judgements and cause them to
be enforced. In this way, the State, through the organs of justice
maintains the objective legal order which has been altered by the
perpetration of crime, and guarantees the effectiveness of the
ius puniendi. The legal rule in question is provided for at
present in Article 18 of the existing Code of Criminal
Procedure.

Article three enshrines
the principle of citizen participation.

As mentioned earlier, by
including the citizenry in the tribunals responsible for judging
crimes, the idea is to combat the bureaucratic and routine
practices that mark the current state of the administration of
justice.

As Cavallero and Hendler
suggest, the participative ingredient becomes highly important in
the administration of justice, since harmonious interaction between
the community and the justice system largely depends on it. These
authors cite the Report of the European Committee on the Problem of
Crime of 1989, which devoted one of its studies to the subject of
public opinion, pointing out that the indispensable requisite for
the dynamic and smooth functioning of the dialectical process
between the people and the law is an agreement between them that
“they should not be very close nor very far apart, and should
be able to communicate with each other”.

Article four establishes
the autonomy and independence of the judges.

The draft code virtually
repeats the content of Article 205 of the Constitution, referring
to the classical independence of judges, based on the principle of
the separation of the branches of government (external
independence). It incorporates as the main aspect, the internal
independence of the judicial branch, i.e. from the other judicial
organs (the Supreme Court) and administrative organs (Judiciary
Council) that also form part of it.

It reflects one of the
aspects included in the Basic Principles on the Independence of the
Judiciary approved at the Seventh United Nations Congress on the
Prevention of Crime and Treatment of Offenders held in Milan in
1985, which establishes that: “It is the duty of all
governmental and other institutions to respect and observe the
independence of the judiciary. The judiciary shall decide matters
before them impartially, on the basis of facts and in accordance
with the law…”.

By making judges subject
to legality (ley)and to the principles of justice
(derecho), the positivist paradigm that wrongly assimilated
the two is surmounted. As García Pascual states, this makes
it possible to describe the courts as organs of judicial production
which are not limited to reproducing legal texts, and whose
jurisprudence is part of the legal order. This creative function,
since it is subject to the principles of justice, is discretionary
and not arbitrary. To maintain that judges create law does not mean
postulating a new judicial function hitherto unknown in the
judicial world. Instead it recognizes a normal and inevitable
practice (Hart). For years, the theory of legitimacy has been
influenced by formal-legalistic doctrines which, based on the
fullness of the legal order, reduced justice to law and the judge
to a person who merely applied the law.

Article five of the
preliminary title refers to the authority of the judge.

This rule comes from
Article 21 of the Code of Civil Procedure and reiterates the
principle of cooperation between the public powers recognized in
the constitution. A concrete example of the principle of the
judge’s authority appears in Article 358 of the draft, which
empowers the judge to make use of the public forces to compel
experts or witnesses who have been duly summoned to appear before
the court. Article 6 of the Law governing the Judicial Branch is
similar.

Article six refers to the
obligation to reach a decision.

Since judges have the
power to administer justice, they are required to reach a decision,
to the point where criminal penalties (Art. 207 of the Criminal
Code) are imposed on public officials who omit or refuse to carry
out any act that forms part of their mandate.

Article seven recognizes
the principle of the ‘natural judge’

Under this provision,
only a judge already appointed by law can legitimately judge,
thereby prohibiting the judgement of certain crimes by special
tribunals created after the crimes were was committed.

Article eight establishes
the presumption of innocence.

This principle has its
origin in the ideas of the Enlightenment. The Declaration of the
Rights of Man and the Citizen of the French Revolution recognized
that all men are presumed innocent until found guilty. The
principle is also included in the United Nations Universal
Declaration of Human Rights, in the American Convention on Human
Rights (Pact of San Jose, Costa Rica) and the International
Covenant on Civil and Political Rights.

Article nine deals with
the principle of the affirmation of personal liberty.

The principle of personal
liberty is strengthened as a general rule by treating preventive
custody as an exception, which also complies with the commitments
made by Venezuela in this area.

Article 10 enshrines
respect for human dignity as another of the principles of this
reform, thereby recognizing one of the human rights that is most
impaired during a criminal trial. Transgression of the criminal
legal order by the accused does not mean that he loses his rights
as a human being.

This article enshrines
the principle that public criminal action is brought by the
Ministerio Público, which is responsible for
directing the preliminary investigation to determine whether a
crime has been committed and discover the identity of the author,
which means that the investigative police organs function under its
direction.

Article 12 establishes
the principles of defence and equality between the
parties.

In the criminal process,
the claims of the accuser and the accused are dialectically opposed
- claims that should be placed on an equal footing. This does not
mean that criminal justice is transferred to the private sphere,
given that the State continues to reserve a monopoly over the
imposition of penalties for itself. However, this equality of aims
that marks the Anglo-Saxon adversarial system, in addition to being
linked to the right to defence and a fair trial, is the expression
of the recognition of equality as a fundamental guarantee
recognized in Article 61 of the Constitution.

One manifestation of the
principle of defence is the provision contained in Article 352 of
the draft code, whereby the judge is required to inform the accused
about the possibility that the court may classify the crime in a
different category that was not considered by the parties, so that
this can be taken into account.

Article 13 consecrates
the purpose of the trial.

Under this rule, the
purpose of the trial is to establish the truth of the events, which
means that the court is required to discover the historical truth,
which may or may not be the same as argued by the parties. Although
the court may not introduce events that are different from those
announced in the charges, for the purposes of certainty or
obtaining sufficient evidence for a conviction, the judge is
empowered to order, on his own motion, that evidence be submitted
(Art. 360) and may question experts (Art. 355) and witnesses (Art.
357).

Nonetheless, the truth
cannot be obtained at any cost. It is always necessary to safeguard
respect for the dignity of the human being.

Articles 14, 15, 16 and
17 consecrate, respectively, the principles of the proposed
procedure, i.e., oral trials, publicness, direct communication
between judge and parties and closeness in time, which have already
been discussed.

Article 18 deals with the
principle of refutation. This principle, which is closely linked to
the principle of publicness and is a necessary consequence of the
involvement of two parties, assumes that the actors in the trial
have the power to present and request evidence, examine the
evidence, be present when it is taken, object to evidence and
challenge decisions that deny the taking of evidence. This right to
dispute evidence is one of the aspects of due process and, in
consequence, placing limitations on that right invalidates the
evidence.

The mention of monitoring
constitutionality made in Article 19 of the principles is intended
to include the dogmatic part of the constitution as one of the
direct sources of procedural legality.

Article 20 establishes
that a person can only be tried once for the same crime (ne bis
in idem). This principle postulates that no one can be tried
more than once for the same events. However, the possibility of a
new prosecution is left open in two particular cases.

Article 21 regulates the
res judiciata. As a guarantee of legal security, the accused
has the right to be judged and condemned only once for the same
events and therefore dead cases cannot be reopened, with the
exception of reviews.

Article 22 regulates the
system of weighing evidence. The judge has the obligation of
weighing it using his absolute discretion, following the rules of
logic, scientific knowledge and the lessons of
experience.

2. Book one

Book one has nine titles:
Title I refers to the exercise of criminal action and consists of
four chapters, i.e., on its exercise, on the obstacles to its
exercise, on the alternatives to prosecution and on the extinction
of action. Title II is on civil action. Title III consists of six
chapters: chapter I contains general provisions on the criminal
jurisdiction, judicial organization and prejudicial hypotheses.
Chapters II, III and IV deal with fundamental criteria regarding
the competence of the court - territory, subject matter and
connection, respectively. Chapter V regulates the modes of
determining jurisdiction and chapter VI regulates challenges to a
court’s competence and disqualification. With regard to these
last assumptions, which have an impact on objective jurisdiction,
the draft broadens the traditional grounds which until now have
been restrictive, to include the possibility of making challenges
or calling for disqualification on grounds other than those listed
in Article 83, when based on serious arguments regarding the
impartiality of the judge.

Title IV deals with the
subjects of a trial and their auxiliaries. This title is divided
into seven chapters: chapter I contains preliminary provisions,
chapter II refers to the court, III to the Ministerio
Público, IV to the organs of the criminal investigation
police, V to the victim and the complainant, VI to the accused, and
VII to the auxiliaries of the parties.

The chapter on the courts
provides for courts of the first instance that are composed of a
single professional judge, or mixed courts or jury courts,
depending on the punishment for the offence. The courts of the
second instance -appeal courts - are composed solely of
professional judges.

The chapter on the
Ministerio Público stresses its autonomy and
independence, as recognized by the Constitution, and its role as
initiator of criminal action, to which end it has many
powers.

The next chapter
regulates matters concerning the victim, who is generally forgotten
by criminal science. The idea is to protect the victim and prevent
re-victimization, as occurs under the present system. The
possibility is established for victims to lay a complaint, to
guarantee their legitimate standing in the case, although the
institution of public action for the trial of offences against the
public interest is removed and, as a novelty in our system, victims
are given a series of rights they can exercise during the trial
(Art. 117), even if they do not have standing as
complainants.

With regard to the organs
of the criminal investigation police, stress is placed on the fact
that they are auxiliaries of the Ministerio Público
in their investigations to substantiate prosecution charges. During
the investigation phase, prosecutors may request the assistance of
anyone who belongs to any part of the public administration or the
justice administration, but functionally, they carry out their
investigative activities under the direction of the Ministerio
Público.

Chapter VI defines an
accused as anyone who is charged with being the author of or
participant in an event that is punishable, under charges laid by
the authorities established in the code. The code stresses the
constitutional guarantee entitling the accused to a defence, and
the accused may not renounce that right, so much so that his
statement is not valid unless it is made in the presence of his
defence counsel.

As for the defence, the
handicaps under which it operates in the current system are removed
and counsel may intervene from the outset of the proceeding. If the
accused does not select an attorney of his own, the court is
required to assign him a public defender. The provision of expert
counsel does not undermine the right to self-defence that the draft
code grants to the accused.

As for private
accusations, they are allowed for crimes that can only be
prosecuted when a complaint is laid by a private party. As for
crimes against the public order that can only be prosecuted by the
government, the victim is granted standing, and may file as an
independent complainant or join the suit brought by the
prosecution.

Title V regulates citizen
participation - a principle established in the Preliminary Title -
establishing that participation in the administration of justice is
a right and a duty. Chapter I of this title, contains general
provisions on the obligations, requisites, incompatibilities,
impediments, exemptions, notifications and instructions, draws,
payment, employer obligations and sanctions that can be imposed on
members of mixed tribunals (escabinos) or juries, with an
escabino defined as a citizen who is not an attorney who
sits together with a professional judge on a court to try offences
punishable with a prison term of more than four years but less than
16 years (mixed tribunal) and a ‘juror’ defined as each
of the nine citizens who are not attorneys who sit on a court
presided over by a professional judge, responsible for trying
offences punishable with a prison term of over 16 years. Chapter II
regulates the organization and functioning of mixed tribunals and
juries, respectively.

Title VI contains rules
regulating the regime of procedural activities, i.e. proceedings
and nullity. The draft code departs from the formalistic
connotations that are closely linked to the inquisitorial and
written system which, today, results in declarations of nullity for
deficiencies that can easily be corrected.

Chapter I of this title
which refers to proceedings, contains three sections. The first
describes general provisions, such as official language, validity
requirements and the content of acts, the obligation to appear when
called as a witness, expert or interpreter, the system for the
examination of the deaf and mute, and regulation of working days.
The second section deals with decisions, requiring them to be
classified in the record, and sentences, and both - except for mere
proceedings for substantiation and the jury’s verdict - must
be reasoned, on penalty of nullity. They must be signed by the
judge who hands them down. Sentences are to be pronounced at a
public hearing and sentences or acts may not be altered by the
court that handed them down, without prejudice to appeals to the
court requesting that it reverse its own decision and the
correction of material errors. Section three regulates the time
limits and forms of notification and citation.

Chapter II deals with
nullity. The draft code calls for the immediate correction of
nullity through avenues for the correction of defects or
convalidation and, as a final alternative to throwing out the
defective act, a declaration of nullity.

Title VII deals with the
system of evidence and consists of two chapters, the first
containing general provisions, which enshrine the freedom to
produce evidence in a criminal proceeding, the legality of evidence
and, in consequence, the inadmissibility of evidence obtained
through means that alter or could alter the psychic state of
individuals or deprive them of their freedom or capacity. Evidence
that has been obtained in violation of the law is also declared
inadmissible. Last, this chapter regulates the system of weighing
evidence, and represents a substantial change, replacing the system
in effect at present that uses a predetermined scale to determine
the weight of evidence with the system based on the judge’s
absolute discretion, following the rules of logic, scientific
knowledge and the lessons of experience, mentioned
earlier.

Chapter II regulates the
requirements for obtaining evidence and consists of five parts: the
first deals with inspections, the second with searches, the third
with verifying events in special cases, the fourth with the
interception of correspondence and communications and the fifth
with testimony. As can be seen, the provisions regarding
confessional evidence and circumstantial evidence and presumptions,
which are typical of systems based on predetermined scales or
valuations, have been removed.

Title VIII deals with
restraint. The conflict that arises between individual liberty and
the security that the State is required to guarantee its citizens
is a matter of criminal policy. This means that measures of
personal restraint, fundamentally deprivation of freedom, must be
regulated on the basis of rational criteria, while also offering
the public guarantees. The draft code establishes that all measures
involving personal restraint must be based on the principles of
exceptionality and proportionality, which obviously constitutes a
limitation on the powers of intervention of State
agencies.

Exceptionality assumes
that a person can only be deprived of his freedom - a measure that
can only be ordered by the overseeing magistrate - when the other
means of restraint would be insufficient to guarantee the purposes
of the procedure. Therefore, to protect this principle, the notions
‘risk of flight’ and ‘risk of obstruction’
are defined, which are the only grounds on which deprivation of
freedom during a trial can be justified. Otherwise, preventive
custody could be used as a punishment applied in advance. A list of
measures that can replace custody is given, and the obligation is
established of reviewing and examining measures of personal
restraint every three months.

It is also established
that the measure decreed should be proportionate to the seriousness
of the offence, the circumstances under which it was committed and
the probable penalty and, in no event, may it exceed the minimum
penalty established for the crime in question or exceed the term of
two years (principle of proportionality).

The draft code
establishes 30 days as the maximum period allowed to the
Ministerio Público for proposing charges, closing the
file on the case or requesting a dismissal - 30 days counting from
the date on which the overseeing tribunal decrees preventive
custody.

Under the current system,
once an arrest warrant has been ordered, the person can be detained
indefinitely until the final sentence is handed down (with the
limits established in the Law governing Release on Bail), while
under the system envisaged in the draft code, once a decision is
issued ordering the arrest of a person, the Ministerio
Público is required to present the charges, request a
dismissal or close the file on the case within a period that can
never exceed 30 days, because if it does not act within that
deadline, the judge will order the person in detention to be
released. The judge may order a substitute measure which will last
until the final sentence is handed down.

This same title also
regulates the arrest of persons caught in a flagrant offence,
defines ‘flagrant offence’ and establishes that one of
the special procedures described in book three will be
applied.

Title IX deals with the
economic effects of the trial, a subject that has been extremely
neglected in criminal practice, despite the fact that the Criminal
Code calls for payment of the trial costs as an accessory penalty
to every principal penalty. The cost recovery system is therefore
regulated. Another innovation is included, which is compensation
for an accused who is absolved pursuant to a review of the sentence
and for an accused who was held in jail during the proceeding, when
it is found that the event did not occur, was not criminal in
nature, or his participation is not proven.

3. Book two

The second book of the
draft code of criminal procedure regulates ordinary proceedings.
The study of ordinary proceedings is particularly important since
the Legislative Committee intends to establish a single procedure
for judging criminal matters and to replace the host of special
procedures introduced under different laws, which it will revoke.
Once the draft code has been passed into law, everyone accused of a
crime will be judged by the ordinary courts, in accordance with the
provisions of book two of the new code of criminal procedure. When
the code comes into effect, special criminal jurisdictions will
disappear.

As already mentioned, the
changes to current ordinary proceedings involve replacing the
pre-trial proceedings carried out by the trial judge and the
police, proposing a preliminary investigation by the Ministerio
Público; the introduction of an intermediate stage
involving a preliminary hearing; and subsequently bringing the case
to trial before a court that is not the court involved in the
investigation phase. The idea is to protect the impartiality of the
judges called upon to rule in the case, avoiding the concentration
of functions (investigation, charges and ruling) in a single public
official.

Book two consists of
three titles, the first on the preliminary stage, the second on the
intermediate stage and the third on the oral trial.

Title I consists of four
chapters, with the first containing general rules. The second deals
with the start of the process and consists of four parts: the first
on the official investigation, the second on the denunciation
(denuncia), the third on the complaint (querella) and
the fourth contains general provisions governing these three modes
of proceeding. Chapter III covers the development of the
investigation, stressing the need to keep the investigation
confidential from third parties, and the need for the Ministerio
Público to conclude its investigation with the diligence
demanded by the case. Six months after a suspect has been
identified, he may petition the overseeing magistrate to establish
a prudential period for the Ministerio Público to
conclude its investigation, whereupon it must file charges or
petition to have the proceedings stayed within the following 30
days.

The purpose of this phase
is to carry out the necessary investigations to determine whether
or not there are grounds for charging a person and petition for a
trial or to have the proceedings stayed.

The most important
measure that can exist during this preliminary stage is the
preventive judicial deprivation of freedom of the accused. Other
measures that can also affect constitutional guarantees are
searches, seizure of property, interception of communications and
correspondence and therefore an order must be obtained from the
overseeing magistrate.

Chapter IV regulates the
ways in which an investigation by the Ministerio
Público can conclude: closing the file on a case,
petitioning to have the proceedings stayed, or proposing charges.
The ministry can close the file on a case when it believes that the
results of the investigation are not sufficient to file charges,
without detriment to the right of the victim to petition to have
the case reopened.

When the prosecutor
believes he has sufficient evidence to ask for the case to be
brought to trial, he will propose the charges, otherwise he may
petition to have the proceeding stayed, a petition that is
basically made for traditional reasons, particularly the
possibility that the events under investigation are not illegal or
are not punishable and the accused is not guilty.

Title II regulates the
intermediate phase, whose main action is holding the preliminary
hearing, after which the overseeing court will totally or partially
admit the charges laid by the Ministerio Público or
the victim and order the trial, in which case it will remand the
file to the trial court. If it rejects the charges the case must be
stayed. It is also possible for the court at this time to order
formal defects in the charges to be corrected, decide on any
exceptions requested, standardize petitions for reparation, ratify,
revoke, substitute or impose a cautionary measure, order that
evidence be heard in advance, or hand down a sentence if the
accused confesses to the crime.

Title III on oral trials
consists of two chapters. This is the key phase, the most important
in the entire criminal proceeding, in which a judicial decision
ends the social conflict that led to the trial.

The first of the chapters
in this title contains the general rules that govern this phase:
oral proceedings, direct communication between judge and parties,
publicness, closeness in time and continuity, and only allows for
special suspensions that are precisely determined. The second
chapter deals with the trial of the case and contains three parts.
The first is on preparation of the debate and in this stage the
composition of the court is verified, depending on whether the
offence should be judged by a single-person court, a mixed court or
by judge and jury, and the court is established. Section two
regulates the development of the debate, which is the phase where
the principles of oral proceedings, direct communication between
judge and parties, publicness and closeness in time are put into
practice and where the presentation of evidence will be governed by
the principles of refutation and equality. Accordingly, the only
evidence that the court will consider is evidence offered during
the oral trial, which is immediate and allows for refutation,
except in the exceptional case of evidence taken beforehand that
can be read into the record.

Section three deals with
the deliberations and sentence. Here, writing the sentence
immediately after the deliberation is important, and the
possibility of delay is rejected.

4. Book three

Book three refers to
special procedures and is composed of 10 titles. The first contains
a preliminary provision establishing that the rules of ordinary
procedure will be used in the event that the regulations on special
procedures are silent. The second deals with the short procedure,
which is applied for flagrant crimes and petty crimes (crimes that
are sanctioned with prison terms of not more than a maximum of four
years), provided an agreement has been reached between the accused
and the Ministerio Público to apply this procedure,
and in the event that security measures and administrative
sanctions involving imprisonment are involved. In these cases,
either owing to the petty nature of the event or to overwhelming
evidence against the accused (as in the case of flagrant offences)
most of the matters can be solved and the more onerous costs of a
full procedure can be avoided.

Section III regulates the
procedure of confessing to the crime - an institution whose roots
go back to the United States guilty plea and the Spanish
conformidad (acceptance) despite the marked differences
between the two. As Alcalá-Zamora affirms, the legal nature
of conformidad is that of submission to a legal decision,
since it requires an act expressing willingness by the accuser, an
order of confirmation by the court to the effect that the legal
requisites have been complied with, and a sentence related to the
acceptance of guilt, provided the offence does not entail a prison
term of more than six years. These limitations on the powers of the
tribunal do not apply to the guilty plea, since a statement of
guilt in the English criminal proceeding leads immediately to
imposition of the penalty.

This procedure is
applicable when the accused consents and admits to the events. In
these cases, the trial can be dispensed with and the overseeing
court will hand down a sentence immediately. This is the only case
in which the overseeing magistrate acts as sentencing judge, rather
than being limited to exercising oversight and security
functions.

Since not holding an oral
trial affects the basic guarantees, this special procedure can only
be applied when the consent of the accused has been given with
complete freedom, to which end a judicial control is established to
prevent consent from being distorted by undue pressure. As a
benefit for the accused who agrees to this procedure, the penalty
applicable to the offence will be reduced from between one third to
one half, account taken of all the circumstances, the legal good
affected and the social injury caused.

Title IV deals with the
procedure to be followed in trials involving the country’s
president and other senior government officials, which considerably
simplifies the existing system, based on the provisions contained
in the Constitution.

Title V regulates trials
in absentia for offences against the public good. It defines which
persons are considered to be in absentia and regulates the
procedures to be followed once it is determined that a trial should
be held. The preliminary hearing is held in the presence of a
defence counsel, and the ordinary rules of procedure are
followed.

Title VI regulates the
procedure for misconduct (faltas), adapting to the new
judicial organization that is proposed, and simplifying the process
of reaching a decision.

Title VII develops the
procedure for extradition, adapting it to the provisions of the
international instruments ratified by Venezuela.

Title VIII establishes
the procedure to be followed in trying offences that the criminal
legislation classifies as private, i.e. offences in which charges
must be laid by the victim or his legal representative. For all
intents and purposes, this procedure begins with the oral hearing
in which the ordinary rules of procedure will apply, although there
may be a prior stage in which the victim can request judicial
assistance in preparing the charges.

When a person who has
committed a crime is unindictable, a penalty cannot be applied,
although the imposition of a security measure may be called for if
the charges are proven. Title IX spells out the procedure to be
followed, adapting the rules to the special circumstances of the
accused.

Title X regulates the
procedure to be followed for reparation of damages and compensation
for injury, establishing that the court sentence will operate as an
execution paper, in other words, a monitoring procedure is
established that simplifies the common procedure, without detriment
to the principles of defence and equality of the parties in the
process.

5. Book four

Given the nature of an
oral trial, if we want the decision to respect the principle of
direct communication between judge and parties, control over it [in
an appeal] cannot be given to a tribunal that has not witnessed the
evidence or the debate. Doing so would be to denature the oral
trial. It would not be a court of second instance, but a second
court of the first instance (Binding). To repeat the oral trial,
apart from the cost entailed, works against the principle of
celerity (right to be tried without undue delay). It would also
involve giving the last word to a tribunal that is farther removed
in time from the events.

This made it necessary to
reform the entire system of appeals to base it on the principles of
an oral trial. Accordingly book four on appeals contains five
titles. The first contains general provisions to be considered in
the stage of challenging the verdict (legitimacy, whether a
challenge is allowable, effects, prohibition of reformatio in
peius).

By expressly including a
ban on reformatio in peius (Art. 435) in favour of the
accused and never in favour of the accusers, the intent is to
strengthen the right to defence recognized in the
constitution.

Title II deals with
revocation, which is only allowed against mere orders to
proceed.

Title III deals with
appeals and introduces significant modifications into the current
system, since it makes it compulsory to argue the grounds for
appeal, otherwise appeals will be denied. It provides - which
justifies the suppression of the automatic appeal - for filing the
appeal with the court that handed down the original decision, which
is required to call the parties to answer the arguments and to
offer evidence, if pertinent, and then to remand the case to the
court of appeal for a decision.

It also draws a
distinction between an appeal of decisions issued in the
preliminary, intermediate and execution stages and appeals of the
final sentence handed down by the court. With regard to the latter,
appeals are admissible where there has been a violation of the
rules governing oral proceedings, direct communication between
judge and parties, concentration and publicness of trial; breach,
contradiction or lack of logic in the written grounds for the
sentence, or when the sentence is based on evidence that was
obtained illegally or admitted in violation of the principles of
the oral trial; disregard or omission of substantive formalities in
acts that leave the defendant unprotected; violation of the law for
failure to observe a legal rule or for having applied it wrongly.
This system is intended to control the legitimacy of the sentence
and is generally related to strict compliance with legal rights and
guarantees.

Although appeals have
been regulated as petitions for nullity (nulidad), which
will ease the workload of the Supreme Court, Title IV deals with
appeals to the highest court for reversal on the grounds that the
lower-court decision failed to apply or wrongfully applied a legal
precept; or no grounds or illogical grounds are given for the
sentence; or the sentence is based on events for which no evidence
was produced, or on evidence obtained in violation of
constitutional precepts or through means not authorized in the
law.

Appeals are simplified
and their substantiation is made less dependent on formalities. The
principle of oral proceedings can be seen in the requirement for a
public, oral hearing of the debate.

Appeals for review may be
filed directly with the highest court against sentences handed down
in trials by jury.

As a novelty, appeals to
the highest court per saltum (Art. 455) have been included,
i.e. granting the possibility of filing with the supreme court
rather than an appeal court, when the sentence contains no grounds
or illogical grounds; the sentence was based on evidence obtained
illegally or included in violation of the principles of oral
trials; or when it fails to apply or wrongfully applies a legal
precept. It also institutionalizes the principle of economy in
proceedings.

Title V deals with review
(revisión), which is the only appeal possible against
a final sentence and which is basically allowed on traditional
grounds.

6. Book five

Book five is devoted to
execution of the sentence. This book establishes the figure of the
judge in charge of sentence execution and security measures - known
in other legislation as the ‘sentence overseeing
magistrate’ - who is responsible for taking cognisance of all
the consequences of the sentences of the trial court. Control over
execution of the sentence is no longer an administrative process
but becomes a jurisdictional one. By including this measure, it is
expected that the external control the judge will exercise over the
penitentiary system will make a significant contribution to its
humanization.

This book contains four
chapters. The first establishes general provisions regarding the
serving of sentences and security measures. The second deals with
the execution of sentences; the third with parole, which is granted
today by the Ministry of Justice; and the four with the application
of security measures. Recognition of the right to defence and the
principles of direct communication between judge and parties and
oral proceedings have been incorporated into this phase when
decisions are made that affect serving the sentence.

7. Final book

Since the simple approval
of a new procedure is not sufficient to transform the
administration of criminal justice, it is necessary to reform some
other legal texts related to the proposed system (Ministerio
Público, police, judicial branch) and to regulate
institutions for the purposes of incorporating them (citizen
participation) or adjusting them to the principles of the new
system (public defence, penitentiary regime). The final book
therefore concerns the date of entry into force, the transitory
procedural regime and the organization of the courts, the
Ministerio Público and public defendants to act in
the criminal proceeding, which are fundamental rules since they
regulate the transition from the existing system to the system
established in the draft code.

The final book contains
four titles. Title I deals with the date of entry into effect of
the code and the transitory regime. It contains two chapters: the
first regulates the entry into force and application of the code.
It also regulates the early entry into force, i.e. prior to 1
January 1999, of the rules relating to reparation of damages and
the procedure for confessing to a crime, with the special features
described therein.

Chapter II develops the
transitory regime and regulates the treatment of cases that are
under way at the time the code enters into force, distinguishing
between whether they are in the preliminary or trial stage under
the current system, for the purposes of remitting them to the
Ministerio Público, holding the trial, or setting the
date for sentencing. Special divisions are created in the Supreme
Court to hear outstanding appeals for review.

Title II regulates the
organization of the courts, the Ministerio Público,
and the public defenders for their activities in criminal trials.
Chapter I regulates the criminal jurisdictional organs, creating at
least one jurisdictional and administrative organization in each
judicial circumscription composed of criminal judges with the same
territorial jurisdiction, which will be known as a criminal
judicial circuit and which will be presided over by a judge
designated by the Judiciary Council. This circuit will be composed
of a court of appeal with at least one three-magistrate bench and a
court of the first instance. The lower court judges will perform
the functions of oversight, judgement and sentence execution in
rotation.

For the purposes of
ensuring that the judicial organization proposed will not lead to
the creation of three types of courts as closed compartments, and
that a professional judge can act in a single-person court, or as a
member of a mixed tribunal or with a jury, the jurisdictional
functions are spelled out.

It is established that
the administrative services of the criminal judicial circuit will
be divided into judicial services and general services and that
each court will have a permanent court clerk. The bailiff will
report to the circuit and not to each court, as at
present.

Chapter II refers to the
Ministerio Público, and makes the respective
modifications to the law governing that institution to adjust it to
the new functions it will exercise under the proposed
system.

As noted, one of the
novelties of the draft code is the change in the concept of the
Ministerio Público, which will be responsible for
bringing criminal action. This makes it necessary to transform the
institution so that it can fully carry out its new role. A senior
prosecutor is created for each judicial circuit, to be appointed by
the Prosecutor General. The idea is to do away with the centralism
of the Ministerio Público, without harming the
principle of unity, by deconcentrating its actions so as to
streamline decisions in a process marked by celerity.

Another very important
aspect is the establishment of a career path in the Ministerio
Público, with the purpose of regulating the conditions
of admission, employment and discharge of its officials and
employees.

As a requirement under
the new system and with a view to strengthening the public defence
system, chapter III regulates the institution of public defence,
ordering the creation of an autonomous service that reports to the
Ministry of Justice. It would be useful for the efficient delivery
of this service if the institution were to enter into agreements
with colleges of attorneys, universities, nongovernmental
organizations or private lawyers.

Given the need to
establish the courts prior to the entry into force of the code,
title III provides for the organization of citizen participation
and regulates the appointment of jurors and escabinos who
will form part of those courts. It also provides for the
establishment by the Judiciary Council of a national office that
will take charge of organizing citizen participation and carry out
an information campaign in this regard.

For the purposes of
information, training in the new criminal procedure, and
adjustments in the way its functions are organized, the operators
of the system of administration of criminal justice will have to
establish technical training units. The Judiciary Council, the
Ministerio Público and the colleges of attorneys will
prepare national training plans for their officials and members.
Obviously, an increase in the budget for each of the agencies
responsible for applying the code will be necessary to cover the
requirements of the new system.

Since the fines envisaged
in the draft code are calculated on the basis of the equivalent
value in bolivares of a tax unit, it will be necessary to remit to
the legislation that governs this matter, which is done in Art.
538, title IV, on complementary rules.

This same title also
establishes that the penitentiary system must adapt to the new
system of criminal procedure and orders that the enabling
regulations of the laws governing the system and inmates be adapted
prior to the entry into force of the code. This adjustment in the
regulations is pertinent, given the creation of the judge
responsible for the enforcement of sentences and security measures,
who has been assigned functions in the code that are performed
today by administrative employees.

As for the military
jurisdiction, application of the review procedure established in
book four, title V, of the draft code will be applied in the case
of the review procedure established in Art. 158 of the Military
Code of Justice. The provisions of the new code of criminal
procedure will also apply complementarily to the military code,
until such time as that code is reformed.

VI. BUDGETARY IMPACT OF THE
NEW CRIMINAL PROCEDURE

The Legislative
Committee, from the start of the debate on the new criminal
procedure, in addition to giving consideration to the new rules,
also took account of the impact that its introduction would have on
the judicial organs directly responsible for applying it and on the
educational institutions involved in teaching criminal law and on
the structure of the judicial branch and Venezuelan society as a
whole. From the standpoint of the budgetary impact that
implementation of the new code of criminal procedure could have,
account has been taken of the need to provide criminal justice with
buildings containing the spaces required (courtrooms) to hold
trials under the new procedural system, and the financing that is
necessary to set them up and for their proper
functioning.

A distinction should be
drawn - with respect to budget allocations for 1998 and the
following years - between spending for immediate implementation of
the system, mostly involving rehabilitation and construction of
premises for criminal courts, with special courtrooms and their
equipment, and spending that will be required in any case in the
coming years even if there were no reform of the criminal justice
system, such as higher salaries for judges and judicial staff and
strengthening of the organization for more efficient performance.
Prior to the formal start of the debate on the new code of criminal
procedure, a loan agreement between the government and the World
Bank began to be implemented in 1994, which includes, among other
programs, rehabilitation of existing buildings and the construction
of courthouses, which will be totally financed by Venezuela, and
whose programs can partly be used in implementing the new criminal
trial system.

However, since the
proceeds of the loan will not be sufficient to provide all the
criminal judicial circuits with the space they need to hold trials
and organize the service, the government will have to include
additional funds in the budget it submits to congress for 1998,
which are necessary to complete the financing for all the works. To
facilitate the necessary decisions and arrangements, studies have
been conducted and reports have been submitted to the corresponding
executive and legislative authorities.

The loan agreement, whose
initial objective was only to improve the functioning of the courts
and the Judiciary Council in its capacity as administrator of the
courts as a whole, includes another three programs in addition to
the program to rehabilitate the existing buildings and construct
new premises for the courts. Those three programs are intended to:
strengthen budget planning, formulation and management and the
administrative capacity of the Judiciary Council, including the
design and start-up of an information system to provide performance
indicators; improve the productivity and efficiency of the courts
through their reorganization and the rationalization of their
administration, including automation of the caseload; and
strengthen the administrative capacity and legal knowledge of court
employees through support for the School of the Judiciary in
designing and offering that training.

Execution of the
engineering works envisaged in the loan is indispensable to ensure
that the new code of criminal procedure can come into force on 1
January 1999 as planned, with the object of eradicating the flaws
and shortcomings in criminal justice that mean that most inmates
are people awaiting a decision by a criminal court. It will be
necessary to have available during the course of the vacatio
legis, in 1998, the resources needed to train and recruit,
where necessary, the judicial and administrative staff needed to
duly organize the criminal courts, the Ministerio
Público, the public defence agency and the police forces
to adapt to the proposed changes.

Although the proceeds
from the loan are not sufficient to cover all of the requirements
that stem from implementation of the new code of criminal
procedure, they make a significant contribution that needs to be
complemented in accordance with the analyses presented to the
agencies with responsibilities in this area, which have reasonably
established the additional sums that need to be included in the
1998 budget.

As an additional
expression of the Legislative Committee’s interest in this
matter, two final comments are called for. The first refers to the
efforts made to determine - through numerous events held with the
directors of the main agencies involved in this change in the work
to be done by each of the agencies - the persons responsible for
managing the changes and the probable cost of their implementation,
which should lead to plans for the different agencies. Those plans
are currently being prepared and will come up with possibilities
for more efficient and effective use of the funds earmarked to
finance the criminal justice system. The second refers to the
proposals to the senate and house of deputies on the matters
included in the report of the Legislative Committee on the draft
code of criminal procedures that has been discussed and approved by
the committee and, it is hoped, will be passed by the two chambers
meeting in joint session. What needs to be done, on the one hand,
is to ask the standing committees on finance of the senate and the
chamber of deputies to include in the budget for 1998 all the funds
needed to start up and operate the new system of criminal procedure
and stage one of the legislative program to transform Venezuelan
justice, relating to penal reform. On the other, channels need to
be established for coordination between the executive and judicial
branches to ensure the start-up and operation of the system and
execution of the program to transform Venezuelan
justice.